New Jersey attorneys no longer will be obligated to maintain a traditional bricks-and-mortar office as a condition for practicing law in the Garden State, thanks to a rule change the state supreme court adopted Jan. 17.
The modifications, which take effect Feb. 1, drop a controversial mandate that required lawyers to maintain a fixed physical office location. However, the amended rule instructs lawyers who don't have a fixed office location to:
• maintain a system ensuring “prompt and reliable communication” with clients, other attorneys, and courts, such as a telephone service staffed during ordinary business hours, or a promptly returned voicemail or email service;
• be available for in-person consultations requested by clients at mutually convenient times and places;
• designate an actual location for inspection of files and records, hand deliveries, and service of process; and
• fill out a form appointing the clerk of the New Jersey Supreme Court as agent for service of process.
The amendments rework New Jersey Court Rule 1:21-1(a), which up until now required as a qualification for law practice in New Jersey that a lawyer maintain a bona fide office somewhere in the United States.
The changes effectively relegate to the dustbin a three-year-old New Jersey ethics opinion that nixed the idea of a virtual office as a lawyer's main base. See New Jersey Ethics Op. 718, 26 Law. Man. Prof. Conduct 232 (2010).
The amendments were praised by Chatham, N.J., lawyer Matthew Stoloff, who had filed a petition seeking to overturn the ethics opinion.
“Lawyering is a service oriented business, and I think the new rules are a win-win for both lawyers and clients,” Stoloff told BNA.
Although the court denied Stoloff's petition in July 2010, it asked its Professional Responsibility Rules Committee to study the issue in consultation with the court's ethics committee and attorney advertising committee, and to report back to the court with recommendations on whether Rule 1:21-1(a) should be amended to permit the use of a virtual office.
The rules committee recommended modifications to allow lawyers to practice in New Jersey without a fixed physical office location. The court published the proposals for comment a year ago. See 28 Law. Man. Prof. Conduct 131.
Richard Granat, who co-chairs the eLawyering Task Force of the ABA Law Practice Management Section, likewise lauded the change, describing it as “a balanced approach that protects the interests of clients while enabling law firms to take advantage of the economic and other benefits of virtual law practice technology including the online delivery of legal services.” Granat is CEO and founder of DirectLaw Inc., which provides consulting services to virtual law firms.
According to North Carolina attorney Stephanie L. Kimbro, who writes and blogs on virtual law practice, the rule changes will benefit both lawyers and the public.
The amendments will make it possible for home-based practitioners to practice law, and “will increase access to justice by providing the public with alternative modes of legal services delivery,” Kimbro said. She practices with Burton Law, which states on its website that it is structured as a virtual law firm.
In an interview with BNA, Kimbro noted that the amendments require New Jersey lawyers to designate a fixed location for inspection of client files and the attorney's business records on short notice. This mandate, she said, seems to overlook the fact that lawyers increasingly are using the convenience of cloud-based document management systems.
On the other hand, Kimbro noted, the rule does not require the designated physical location to be in New Jersey. For example, she suggested, a New Jersey lawyer who lives in New York could designate a New York location that complies with the requirement.
Stoloff, the lawyer who challenged the now-superseded ethics opinion on virtual practice, told BNA the rule changes mean “we're now keeping pace with technology where many young and middle-aged attorneys regularly use email and texting and meet clients at their homes or at popular spots.”
The new rule acknowledges, Stoloff said, that more and more lawyers communicate with their clients through email, Skype, and texting. “In some situations, and depending on the nature of the case, communication through email and Skype are all that is necessary,” he said. Many clients, he added, actually prefer to communicate via telephone or email and find it difficult to take time off to meet an attorney in person.
Stoloff pointed out that “the new rules also benefit new lawyers who cannot find jobs and have no choice but to start their own practice.” Now these new lawyers don't have to worry about spending money to rent an office and purchase a shingle and hire a secretary, he said.
Lawyering services will be more affordable due to these cost-saving measures and clients will benefit, Stoloff predicted.
The court left in place, for the time being, a provision in Rule 1:21-1(a) that requires lawyers licensed in other states to “maintain a bona fide office” if they practice in New Jersey under Rule of Professional Conduct 5.5(b) and (c), which address multijurisdictional practice.
It also made no changes to Rule 5.5(c)(5), which requires lawyers who are licensed elsewhere to “maintain a bona fide office” in conformance with Rule 1:21-1(a) when they practice in New Jersey under Rule 5.5(b).
However, the court has asked its Professional Responsibility Rules Committee to review those references to the bona fide office rule, along with other rules that still refer to the bona fide office requirement, and recommend appropriate changes.
Updated New Jersey Rule Allows Lawyers to Practice Without Maintaining Fixed Physical Office Location
Effective Feb. 1, New Jersey Rule 1:21-1(a) states in part:
“1:21-1. Who May Practice; Attorney Access and Availability; Appearance in Court
“(a) Qualifications. Except as provided below, no person shall practice law in this State unless that person is an attorney holding a plenary license to practice in this State, is in good standing, and complies with the following requirements:
“(1) An attorney need not maintain a fixed physical location, but must structure his or her practice in such a manner as to assure, as set forth in RPC 1.4, prompt and reliable communication with and accessibility by clients, other counsel, and judicial and administrative tribunals before which the attorney may practice, provided that an attorney must designate one or more fixed physical locations where client files and the attorney's business and financial records may be inspected on short notice by duly authorized regulatory authorities, where mail or hand-deliveries may be made and promptly received, and where process may be served on the attorney for all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto.
“(2) An attorney who does not maintain a fixed physical location for the practice of law in this State, but who meets all other qualifications for the practice of law set forth herein must designate the Clerk of the Supreme Court as agent upon whom service of process may be made for the purposes set forth in subsection (a)(1) of this rule, in the event that service cannot otherwise be effectuated pursuant to the appropriate Rules of Court. The designation of the Clerk as agent shall be made on a form approved by the Supreme Court.
“(3) The system of prompt and reliable communication required by this rule may be achieved through maintenance of telephone service staffed by individuals with whom the attorney is in regular contact during normal business hours, through promptly returned voicemail or electronic mail service, or through any other means demonstrably likely to meet the standard enunciated in subsection (a)(1).
“(4) An attorney shall be reasonably available for in-person consultations requested by clients at mutually convenient times and places. …”
Full text of the amended rule at http://op.bna.com/mopc.nsf/r?Open=jros-94eh8t.
Copyright 2013, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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